Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 219 (RAJ)

Vijay Singh v. Bheru Lal

2010-01-28

SANGEET LODHA

body2010
JUDGMENT 1. - This writ petition is directed against order dated 27.9.2008 passed by the Civil Judge (J.D.), Nathdwara in Civil Suit No. 1/2004, whereby an application preferred by the petitioner/defendant, under Order 6, Rule 17 of Civil Procedure Code, 1908 ('C.P.C.') seeking leave to amend the written statement, has been dismissed. 2. The respondent/plaintiff filed a suit, for eviction against the petitioner/defendant from the suit premises i.e. a shop so also for recovery of arrears of rent, after termination of tenancy in terms of the provisions of Section 106 of the Transfer of Property Act, 1882 ('the Act of 1882'). 3. The suit is being contested by the petitioner by filing a written statement thereto. During pendency of the suit, the petitioner moved an application seeking dismissal of the suit on the ground that the Rajasthan Rent Control Act, 2001 ('Act of 2001) has been made applicable to the municipal area of town Nathdwara, therefore, the suit filed by the respondent under the provisions of the Act of 1882 is not maintainable. The application preferred by the petitioner was rejected by the learned trial Court vide order dated 14.3.2007 holding that the Act of 2001 has been made applicable to the municipal area of Nathdwara w.e.f. 22.2.2006 and therefore, the suit filed by the respondent after repeal of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act of 1950') in accordance with the provisions of the Act of 1882 is maintainable. A writ petition preferred by the petitioner assailing the aforesaid order dated 14.3.2007 has also been dismissed by this Court. 4. Thereafter, the petitioner preferred an application under Order 6, Rule 17 C.P.C. seeking incorporation of the 'additional plea' in the written statement to the effect that during the pendency of the writ petition, Act of 2001 has been made applicable to the town Nathdwara and therefore, the suit filed under the provisions of Act of 1882 is not maintainable. 5. After due consideration, the application preferred by the petitioner has been rejected by the learned trial Court. The learned trial Court opined that the Act of 2001 is not applicable to the municipal area of town Nathdwara inasmuch as, no notification has been issued by the State Government in this regard and since the Act of 1950 stands repealed, therefore, the suit could be filed only under the provisions of the Act of 1882. The learned trial Court opined that the Act of 2001 is not applicable to the municipal area of town Nathdwara inasmuch as, no notification has been issued by the State Government in this regard and since the Act of 1950 stands repealed, therefore, the suit could be filed only under the provisions of the Act of 1882. The learned trial Court observed that amendment sought for which is contrary to the legal position cannot be permitted. While rejecting the application seeking amendment, the learned trial Court has also deleted the issue No. 9 framed in terms of Section 13(1) of the Act of 1950. Hence, this petition. 6. It is contended by the learned counsel for the petitioner that the learned trial Court had earlier while passing the order Annexure 3 dated 14.3.2007 has specifically observed that the Act of 2001 has been made applicable to the municipal area of town Nathdwara w.e.f. 22.6.2001 therefore, the observation made that the Act of 2001 is not applicable to the town Nathdwara runs contrary to the observation made by the Court earlier as aforesaid. The learned counsel submitted that it is settled law that the application seeking amendment should be generally allowed and rejection of the same is an exception. The learned counsel submitted that the learned trial Court has seriously erred in deleting the issue regarding the reasonable and bona fide necessity of the plaintiff of the premises in question. It is submitted by the learned counsel that the issue as framed could be decided only after the trial and at this stage, without there being any prayer for deletion of the issue, the learned trial Court has seriously erred in deleting the issue. 7. Per contra, the learned counsel appearing on behalf of the respondent submitted that the Act of 1950 stands repealed by virtue of provisions of Section 32 of the Act of 2001 and no notification has been issued by the State Government extending the application of Act of 2001 to the municipal area of town Nathdwara, therefore, the suit preferred by the petitioner under the provisions of the Act of 1882 is maintainable and the learned trial Court has committed no error in refusing the amendment of the written statement sought for. The learned counsel submitted that the Act of 1950 having been repealed the question regarding the respondent's reasonable and bona-fide necessity of the premises is not required to be gone into therefore, the deletion of issue No. 9 by the learned trial Court also cannot be faulted with. 8. I have considered the rival submissions and perused the material on record. 9. Sub-section (1) of Section 32 of the Act of 2001 provides that the Act of 1950 shall stand repealed with effect from the date notified under sub-section (3) of Section 3 of the Act of 2001. Sub-section (3) of Section 3 provides that the Act of 2001 shall come into force with effect from such date as the State Government may by notification in the Official Gazette appoint. It is to be noticed that the Act of 2001 has come into force w.e.f. 1.4.2003 vide Notification No. F(8)(G)(11) (Rules)/01/2124 dated 21.3.2003 published by the State Government in the Official Gazette. Therefore, indisputably by virtue of provisions of sub-section (1) of Section 32 of the Act of 2001, the Act of 1950 stands repealed w.e.f. 1.4.2003. 10. Sub-section (3) of Section 32 of the Act of 2001, provides that all applications, suit or other proceedings under the repealed Act i.e. Act of 1950 pending on the date of the commencement of the Act of 2001 before any Court shall be continued and disposed of in accordance with the provisions of the repealed Act as if the repealed Act had continued in force and the Act of 2001 had not been enacted. Under the said provision, the plaintiff has been given liberty to withdraw any suit of appeal or any other proceedings pending under the repealed Act with liberty to file fresh petition in respect of the subject matter of such suit or appeal or any proceedings under and in accordance with the provisions of the Act of 2001. However, it nowhere provides that the Act of 1950 shall continue to remain in operation in respect to the area where the Act of 2001 is not made applicable. Admittedly, the suit for eviction has been filed by the respondent/plaintiff after coming into force of the Act of 2001 and repeal of the Act of 1950, therefore, indisputably, the provisions of Section 13 specifying the grounds for eviction of the tenants from the premises cannot be invoked. 11. Admittedly, the suit for eviction has been filed by the respondent/plaintiff after coming into force of the Act of 2001 and repeal of the Act of 1950, therefore, indisputably, the provisions of Section 13 specifying the grounds for eviction of the tenants from the premises cannot be invoked. 11. There is yet another aspect of the matter needs to be noticed. The Act of 2001 has been amended vide Rajasthan Rent Control (Second Amendment), Act, 2005, whereby in sub-section (2) of Section 1, the expression "having a population exceeding 50,000 as per 1991 census" has been deleted, and vide Notification dated 20.2.2006, the said notification has come into force with immediate effect. But, even after coming into force of the amended sub-section (2) of Section 1, it cannot be said that the Act of 2001 has become applicable to all the municipal areas automatically. As per the amended sub-section (2) of Section 1, the Act of 2001 shall become applicable to any other municipal area only after issuance of the notification by the State Government in the Official Gazette. It is not disputed before this Court that no such notification has been issued by the State Government extending the applicability of the Act of 2001 to the municipal area of town Nathdwara. Suffice it to say that as on the date, neither the Act of 1950 nor the Act of 2001 is applicable to the municipal area of town Nathdwara, therefore, the suit for eviction and possession. after termination of tenancy could have been filed by the respondent only in terms of the provisions of the Act of 1882. 12. In view of discussion above, in considered opinion of this Court, the order impugned passed by the learned trial Court rejecting the application preferred by the petitioner under Order 6, Rule 17 C.P.C. does not suffer from any illegality, infirmity or irregularity. 13. Coming to the deletion of issue No. 9 by the learned trial Court, it is to be noticed that under Order 14, Rule 5 C.P.C., the Court has ample power to delete any issue at any stage of the suit proceedings before the delivery of judgment irrespective of the fact as to whether an application has been preferred by the parties to the proceedings or not. On the facts and in the circumstances of the case noticed above, the Act of 1950 having been repealed, the grounds for eviction in terms of Section 13 of the Act of 1950 are no more available and therefore, the issue framed in this regard does not survive for consideration of the Court. Thus, keeping in view the position of law stated above, the order passed by the learned trial Court deleting the issue cannot be faulted with. 14. In view of the foregoing discussion, in considered opinion of this Court, the order impugned passed by the learned trial Court does not suffer from any jurisdictional error warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 15. In the result, the writ petition fails, it is hereby dismissed. No order as to costs.Petition dismissed. *******